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A. Introduction
1. Perhaps Temporarily Defer This Chapter
2. EnvironmentB. What the Appellate Process Involves
C. Researching Your Case
1. Read the Opinion(s) Below First
2. Read the Record Carefully and Refer to It Often
3. Read the Cases Cited in the Opinion Below
4. Read All Statutes Carefully
5. Search for Secondary Sources First
6. Avoid Skimming Cases for Favorable Language
7. Don’t Eliminate Adverse Cases from Consideration
8. Organize Your ResearchD. Brief Writing: Typical Structure and Techniques
1. Introduction
2. Factual Background
3. Procedural Background (For Appellate Briefs)
4. Statement of Issues
5. Applicable Law
6. Summary of Argument
7. Argument
8. ConclusionE. Writing Your Brief
1. Write Your Conclusion First
2. Write Your Headings
3. Plug in the Law
4. Plug in the Facts
5. Construct Your Paragraphs
6. Edit ThoroughlyF. Oral Argument
APPELLATE ADVOCACY: A PRIMER A. Introduction
Appellate advocacy is the practice of briefing and arguing a case on appeal from a trial court decision. Many schools require appellate advocacy as a part of their 1L curricula, at others it is optional or is an upper level course.
1. Perhaps Temporarily Defer This Chapter: Students may want to defer reading this chapter until you begin your appellate preparation. There is no need to jump into this topic until you’re actually ready to start.
2. Benefit: Appellate work is a great way to develop your analytical legal skills, because you are working with a “closed universe” fact pattern. In other words, a case on appeal is argued only on the facts contained within the record below, so it is easier to focus just on the legal principles involved. Contrast this with trial work, in which each side is trying to prove or disprove facts as well as apply the law.
B. What the Appellate Process Involves
For an appellate argument, in law school and in the real world, you will be given a record (the facts from the court below) the opinion from the court or courts below, and a set of scheduling deadlines. You must write a brief in support of your side of the case and then prepare for oral argument. The appellate court may affirm or reverse the decision below.
C. Researching Your Case
1. Read the Opinion(s) Below First: The best place to start is with a careful reading of the opinion(s) below. Read them thoroughly before you read the record. This way, when you read the record you will be able to spot facts that the court felt were most important to your case.
2. Read the Record Carefully and Refer to It Often: Read the record next. Read your facts carefully for nuances that may be helpful. Compare the record to the court’s fact statement for variations. Return to it often during your research and writing. You’ll be surprised how often the facts aren’t quite as you remember them. Always stay grounded in the facts of your case.
.3. Read the Cases Cited in the Opinion Below: You would be shocked to know how often courts mischaracterize and/or misquote prior cases. Never, ever, assume that a quotation or conclusion from a case is accurate. Read the cases cited carefully yourself. Also, write down the major cases that are relied upon to help you in your research process later.
4. If Your Case Involves a Statute, Read It Carefully: This may seem like a no-brainer, but statutory laws can be complex and ambiguous. Make sure you understand the statute thoroughly, as well as its context (What is the legislative history? What is the purpose of the statute?). Remember, when the letter of the law is ambiguous, you can argue based on its spirit.
5. Search for Secondary Sources First: Many 1Ls make the mistake of jumping in and searching for cases right off the bat. Cases, for the most part, are myopic and fact-bound. Before you dive into the labyrinth of cases, consult secondary texts like law review articles, law journals, and the like. These can be helpful in giving you an overview of your case and the possible arguments to be raised. Also, they will have an organized list of cases - often pro and con on an issue - for you to start your research.
6. Avoid the Temptation to Skim Cases for Favorable Language: Few things are more embarrassing than having opposing counsel or a judge point out that the “dynamite language” you quoted in your brief is from a case that stands for the opposite proposition you are trying to argue. Here’s how it could happen:
a. Dicta, Not Law: Judicial opinions often include discussions of matters peripheral to the case at bar. This is great for understanding the nuances of the law, but it is dangerous for lawyers trying to find support for their position in the current case.
b. Summarizing the Minority Opinion: This is a killer. When the court is divided, the majority opinion will often have a section saying “the minority states that the Plaintiff should prevail because . . . “ and then recite the minority argument. If you miss that introductory language, you might think the majority is on your side, when really the majority of the court was against you.
c. Limiting the Scope: Courts also have a tendency to state what fact pattern or legal issue they are not ruling on (limiting the scope of their own ruling). If so, you need to find the case that expressly supports your argument.
7. Don’t Eliminate Adverse Cases from Consideration: This is another common error. There are several reasons that it is important to read unfavorable opinions.
a. Understand Both Arguments of the Position: You can’t make an effective argument unless you know both sides. If you can anticipate what your opponent will say and defeat or undermine those arguments in your brief first, your opponent will have an uphill battle. It is important to “own” the first impression of an issue.
b. Find Distinguished Cases: The court below may have ruled unfavorably on your issue, but distinguished its decision from other cases. You can go to the distinguished cases and find out if your situation at hand resembles those lines of authority. If so, presto! You’ve got favorable cases and arguments.
c. Prepare for Oral Argument: When you get in front of a judge, you will need to summarize your case. You may also have to respond to your opponent’s arguments.
8. Organize Your Research: Put your sources in piles or make a list by type of source, issue discussed, and position. Try to do this as you go, to save time reorganizing later. Sources can pile up and become unmanageable quickly. Being organized will help you in the next step, which is brief writing.
D. Brief Writing: Typical Structure and Techniques
The standardized structure of a case brief sounds incredibly tedious and repetitive, but there is a purpose to the method. Repetition reinforces the argument throughout the document so the reader never doubts for a moment where you stand. It also breaks down the document into digestible subparts so the reader may, if he or she chooses, quickly find specific sections of the argument. The following is a typical brief structure, although the format can vary widely and you should follow class instruction.
1. Introduction: This is where the author introduces the parties and issues involved in the case.
2. Factual Background: In this section, the author recounts all the pertinent facts in the case. Many students ignore this important element of the persuasive process.
a. Sympathetic Facts Can Make Your Case: The more sympathetic your facts, the more likely you are to get the reader on your side right off the bat. While you must never mischaracterize facts or lie, you may cast facts in a light most sympathetic to your client.
b. You Must Apply Law to Facts in Reaching Your Conclusion: Facts are the heart and soul of legal analysis. Law only operates as it relates to facts. Once you have stated a legal rule in your brief, your next task is to explain how that rule is applied to the facts of your case.
3. Procedural Background (For Appellate Briefs): This is the recitation of how the case got to its current status, and what other courts have said about it. It tells the reader what has happened in the case so far.
4. Statement of Issues: This is a collection of concise, one-sentence statements of the issue or issues to be decided by the court, grounding the issue in the facts. For example, an issue statement in a criminal case might be: “Did the police violate Plaintiff’s Fourth Amendment rights when they kicked in his door without a warrant?” If there is more than one issue to be addressed (and there usually is) then list the issues separately (A, B, C, . . .).
5. Applicable Law: This section is simply a list of the cases, statutes, and other authorities that you reference in your argument.
6. Summary of Argument: This is a brief (one paragraph per issue) statement of your complete argument. Essentially, this will be a summary of your section headings. Don’t try too hard to creatively restate your headings.
7. Argument: This is the heart of your brief. Your argument should take the reader by the hand and lead him or her through your analysis from beginning to end.
a. Headings: Your argument should be in outline format. Your headings should state your legal conclusion for that particular section or subsection. For example, if one section argues that the plaintiff’s Miranda rights were violated because the police did not cease interrogation when he asked for a lawyer, a heading would be: “A. Plaintiff’s Miranda Rights Were Violated Because Police Did Not Cease Interrogation When He Clearly and Unambiguously Invoked His Right to Counsel.” Sounds dull, but a reader should be able to skim only the headings and follow your argument.
b. Paragraphs: The first sentence is the paragraph’s conclusion. This seems counterintuitive, but it is a basic tenet of good legal writing. State your conclusion, state and explicate the law that supports your position, state the facts of your case that are relevant, and then restate your conclusion at the end of the paragraph. Sentences should be clear, direct, and concise. Watch out for passive voice and flowery language. The active voice construction of “subject, verb, object” is best.
8. Conclusion: This is the final statement of your overall argument and your “prayer for relief,” which is a fancy phrase for the statement of what you want this court to do. An example of a typical prayer for relief is, “For the above reasons, Petitioner respectfully asks this court to reverse the ruling of the [trial court, circuit court of appeals, etc.].”
E. Writing Your Brief
After you have been given your assignment and have researched, you are ready to start organizing your approach. Always bear in mind what you want the court to do. Also, remain cognizant of the court to which you are arguing. The Supreme Court can do whatever it wants, but precedent binds lower courts. For example, it would be ineffective (not to mention embarrassing) to argue that the 9th Circuit Court of Appeals should overturn a Supreme Court ruling.
1. Write Your Conclusion First: One great start is to write your conclusion first. Again, this may seem counterintuitive, but it will save you heartache later. It’s incredibly frustrating to craft and refine a whole section of argument and realize that you don’t need it in your brief.
2. Write Your Headings: Next, write your entire argument in heading form, without any paragraphs. Again, this will act as a great roadmap and also help you to recognize holes in your argument and fill them in.
3. Plug in the Law: Underneath your headings, list all the applicable law for that issue. This will help you stay organized and avoid shuffling back and forth between the same cases. You will have a number of sources that support more than one section of your argument. You can keep those sources handy and save time.
4. Plug in the Facts: Identify which facts are applicable to which section. Again, this will help keep you organized and grounded in the facts.
5. Construct Your Paragraphs: Write your paragraphs. Don’t get ahead of yourself or stray from the specific argument of that paragraph. Keep it short.
6. Edit Thoroughly: Always leave yourself time for an editing process. This is a basic tenet of any writing project. Writing only one draft will virtually guarantee that your writing is confusing and full of minor errors. If at all possible, have another person unconnected with the process read your brief. This will ensure that your brief is well-written and easily comprehensible.
F. Oral Argument
Oral argument is made before one or more judges, and is really a conversation with the court rather than a traditional debate. The judges ask questions and the lawyers must respond on their feet (although, obviously, many questions can be anticipated). Oral argument can be frightening and intimidating to some, exhilarating to others. Regardless of your personal comfort level, mastering the basics of good oral appellate advocacy is important.
1. Format: One or two lawyers represent each party. The argument is made to the court; the opponents never address each other directly. Each side is allotted a specific amount of time to argue. If there are two attorneys, the time can be divided between them in any reasonable apportionment. The petitioner (the party appealing the case from the lower court) always argues first. Then the respondent makes his or her argument. Finally, the petitioner gets to rebut (if he or she has time remaining). In this way, each side has a chance to respond to the other.
2. Moot Court v. The Real World: A law school moot court argument differs in many ways from an actual appellate argument.
a. Time: Usually, you have much more time allowed in moot court than you would in front of a real appellate panel.
b. Style v. Substance: Moot Court oral arguments are judged on poise, persuasive ability, knowledge, organization, and other stylistic merits. Judges are told to ignore the legal merits of the arguments. In a real appellate argument, it is the merits that count; some poor oral advocates have won their cases because their legal positions were correct and their briefs persuasive.
c. Feedback: In a Moot Court competition, you will have the opportunity to get real insight into what judges find persuasive. Take advantage of the opportunity to develop your own style.
3. Don’t Be Bound By Your Brief: Ironically, once you have finished writing your brief (and reading the brief of your opponent) you will have learned so much about the topic that your oral arguments will be very different from the arguments you made in your brief. That’s okay. You are not obliged to make the same arguments in oral that you did in your brief. Oral argument is your chance to explicate a few powerful and nuanced points of law that are very important for your case.
4. Policy Considerations: Oral argument is a time to discuss policy (not too much, but some) because appellate law binds lower courts and may affect the outcome of future cases. Make your legal points first, and discuss policy briefly toward the end.
5. Keep It Simple: Your job in oral argument is to educate the judges (respectfully, of course) about the facts and legal bases for your case. Keep your language and structure as simple as possible. Also tell the court the rule you want adopted.
6. Themes and Passion: Every great oral argument has themes, structure, and the conviction of the oral advocate behind it. Has a victim been done wrong? Has the government intruded? Whatever the theme, it should be persuasive and grounded in the facts of your case. Get the judges on your side emotionally, and you will have a better chance of persuading them. 7. Formalities: The following are standard elements of a typical oral argument. Always check the competition rules for variations. Subsection h contains an entire sample opening that incorporates the formalities below.
a. “Judge” v. “Justice”: Make sure you note to what court you are arguing. Supreme Court judges are referred to as “Justices” including state supreme courts. Other judges are referred to as “Judges.” Don’t say “Madam Chief Justice” to Chief of the Court of Appeals.
b. “May It Please the Court”: In Moot Court, the first words to come out of your mouth should be “Good [Morning/Afternoon/Evening] your Honors, may it please the court.” This is a traditional formality.
c. Introductions: Introduce yourself (and your co-counsel, if applicable) and state which party you represent, by title and by name: “Petitioner, John Doe” or “Respondent, the State of X” (in some courts, the titles are Appellant/Appellee).
d. Reserve Time for Rebuttal: If you are the Petitioner/Appellant, you must specifically reserve time out of your total allotment for rebuttal.
e. Statement of the Case: This is a brief declaration of what is at stake in the case for your party. It should be moving, but not inflammatory. You don’t want to invite questions from the panel too early.
f. Road Map: Road maps are vital for winning organization points. A road map is a short outline of what issues you plan to cover in your argument. Start with your prayer for relief, then make your short map.
(1) Two or Three Points: Your road map should address two or three major arguments, no more.
(2) Strongest Argument First: It is vital to start with your best argument first. It will make a good impression and be your best chance to shine with confidence. Also, you may not get to your other arguments if the judge’s questions start coming.
(3) End On a Strong Point: Whether it’s a legal or a policy point, try to end on a powerful argument.
g. Prayer for Relief: The last statement of your oral argument should always be, “For these reasons, [Petitioner/Respondent] respectfully urges this court to [affirm/reverse] the ruling of the [court below].”
h. Sample: Good afternoon your Honors, may it please the Court. I am Metellus Cimber and with me is my co-counsel, Mr. Casca. We represent the Petitioner, Marcus Brutus, in this matter.
“This case is about protecting individual citizens from an illegal government intrusion. I will be addressing the issue of Mr. Brutus’ lack of consent to the search, my co-counsel will discuss the improper warrant requirements under the law of the State of Rome.
“The decision of the Court of Appeals should be reversed for three reasons. First, consent to the search was revoked. Second, the police were not reasonable in their conclusion that a 14-year-old resident could properly consent to the search. Third, the search exceeded the scope of consent.”
8. Argument: Now you’re off and running. You should plan to cover the three topics in the same order as in your roadmap. However, the best laid plans. . .
a. Questions: Appellate argument is about convincing the judges of the validity of your position. To that end, judges will ask questions to challenge, clarify, or undermine your arguments in an attempt to formulate their own positions. At first, law students are terrified of the questions, but in time successful appellate advocates come to love them.
(1) Hot v. Cold Panels: Some panels of judges will fire questions at you left and right. Others let you go right through, asking few questions. You must prepare for a cold panel, meaning, you must have 12 to 15 minutes worth of information to cover in case no one asks questions. However, you must also be prepared for hot panels.
(2) Answer Questions Directly: Whenever you are asked a questions, the first statement out of your mouth should be “Yes, your honor” or “No, your honor.” Then you can launch into an explanation. If the question posed is not a yes or no question, try to infer one. For example, if a judge says, “What I don’t understand, counsel, is if the daughter consented to the search, how can the mother revoke it?” You can answer, “Yes, your honor, typically the courts have put the power of revocation in the hands of the consentor. However, in this case . . .”
(3) Concede Where Appropriate: If a judge has you in a corner on a minor point, concede it. In every case, there will be minor arguments which you can lose without losing the whole case.
(4) Be Exceedingly Deferential and Polite: No matter what, never argue with a judge or seem impatient with his or her questions. You are there at the pleasure of the court, not to give a lecture. Questions are the heart and soul of oral argument, they are NOT interruptions or nuisances.
(5) Watch for the Inapposite Hypothetical: Many judges will try to counter your argument by posing a hypothetical which, if applied to your legal interpretation, would produce a bad outcome. At this point, run back to your facts. “No, your Honor, that would not be the outcome because such a case would be distinguishable from the case at bar.”
(6) Novel Questions: If a judge asks you a question and you don’t have the faintest clue, don’t panic. Pause to consider the question, and then give your best answer. To buy time, you can ask the judge to repeat the question.
b. Transitions: Transitioning (from answering a question back into your argument) is one of the most difficult skills to master. On the one hand, you must communicate to the panel that you are smoothly moving back into the argument laid out in your road map. On the other hand, you do not want your transition to be wooden or obvious. For example, “Getting back to my first point” or “Moving on to my second point” are rather inelegant and obvious transitional techniques. Also, they are flags to the panel that you feel that you have been taken off track or delayed by their questions. The questions should flow seamlessly in and out of your argument.
c. Facts: Be prepared to cite the record from memory. Have some notes if it will help. Some judges will try to test your knowledge of the record. If you cite the record often and early, most will give up and move on to other subjects.
d. Cases: Be prepared to discuss the major cases in detail, including their full titles, facts, decision dates, and holdings. This is not as daunting as it sounds, in most cases, there are only a handful of major cases.
e. Short and Long Conclusions: Have two conclusions prepared: a ten second conclusion and a thirty second conclusion. Watch your time carefully during the last two minutes, and try to wrap up as close to time as possible.
f. Respect Time Limits: If you see that your time is elapsed, there are three approaches depending on your situation no matter what, keep it very brief. If you go more than 20 seconds over your time limit, you are begging for ding on your scoresheet.
g. Pacing: Try to adopt a speaking style that is not too fast or too slow. This is an art that will come with time. Judges will tell you if they could follow you or, conversely, if they were bored because you were plodding. The most important rule of thumb is to remember that you are educating and explaining, and you need to keep your audience engaged.
9. Responding and Rebutting: Although your task is defined in the title, many Respondents forget to respond, and many Rebutters forget to rebut. The best responses and rebuttals actually react to what was said previously, and address the court’s concerns.
a. Respond to Opponent’s Arguments: Say, “Petitioner/Respondent has argued X. However, this ignores Y.”
b. Respond to Judge’s Questions Posed to Opponent: “Judge/Justice Smithers previously asked if X. This raises an important issue Y.”
10. Extra Credit: There are a few things you can do that will really make you stand out.
a. Memorize Your Opening Statement and Conclusion: This shows confidence, poise, and allows you to make eye contact with the judges immediately, which is always persuasive.
b. Occasionally Yield the Remainder: You should always use all your time. However, if you are in the middle of your thirty second transition and there’s a minute left, don’t try to drag it out or fumble, you’ll look uncomfortable. Some say, “And unless there are any more questions, I yield the remainder of my time back to the court.” It sounds silly, but in actual appellate practice courts appreciate this, because it means less time out of their schedule.
c. Address the Judges By Name: As the bailiff brings the judges into the courtroom, he or she will announce their names. They usually do this in order, although not always. Also, some panels will introduce themselves to you before you proceed. If you can jot down the names and identify the judges, it is extra classy to refer to them by name. WARNING: if you are not absolutely positive about a judge’s name, don’t use it. Nothing is more embarrassing than referring to a judge by the wrong name.
11. Develop Your Own Style of Advocacy: The best oral advocates seem totally relaxed and confident. Part of this confidence comes from being yourself, rather than trying to fit the mold of someone else’s style. Many students try to “sound like a lawyer” or act as if they are in a play. This kind of fakery is transparent to those watching. A better approach is to be yourself. This doesn’t mean act casually, it simply means don’t do or say things that feel out of character for you.
12. Remained Poised and Keep Your Sense of Humor: Remember, you are there to learn, not to crush your enemy. Just relax and have fun. You’ll come off as more confident and less flustered.
